rejecting the proposition that statements in the record made by individual board members reflecting their individual opinions as to why they were voting as they did were sufficient findings of fact because those statements did not represent the collective judgment of the agency
How later courts described this case
- rejecting the proposition that statements in the record made by individual board members reflecting their individual opinions as to why they were voting as they did were sufficient findings of fact because those statements did not represent the collective judgment of the agency
Written by the judges who cited it.
The opinion
RUDMAN, J.,
with whom SAUFLEY, C.J. and DANA, J. join, concurring.
[¶ 13] Although I concur in the opinion of the Court, I feel constrained to write separately to advise the Bangor Planning Board and other similar boards what we seek when we remand for findings of fact. We have on at least three occasions recently remanded pending cases for findings of fact. 7 We review, in this case, the Planning Board’s findings of fact to determine whether those findings are supported by substantial evidence. When a board’s findings of fact are insufficient to apprise us of the basis of the Board’s decision, it is impossible for us to determine whether that decision is supported by substantial evidence.
[¶ 14] The Bangor Land Development Code contains in section 165-114 the standards to be used by the Planning Board when reviewing any plan for approval of a land development project. 8 The City So *602 licitor directed the Board to section 165-114 prior to the Board’s consideration of Widewaters’ application. Before the Board commenced deliberations, the Planning Officer reviewed the approval standards and indicated the conclusion of the Planning staff that Widewaters’ site plan met all of the ordinance requirements. The Chair then indicated that he would accept a motion in the affirmative. A *603 member of the Board then stated, “I so move,” which motion was seconded. Each of the Board members then spoke at length, after which the Chair stated, “I think pretty much the decision has been made,” denying the Board’s approval of the site development plan. The record, however, is devoid of an indication as to which of the standards of section 165-114 a majority of the Board determined were not met.
[¶ 15] We remand to the Bangor Planning Board so that the Board may specifically indicate which of the eleven standards were met and which of the standards were not met. It may well be that when considered separately there are three members of the Board that found the applicant satisfied all eleven standards. Rather than to have considered a blanket motion to approve, to permit effective appellate review, the Board should have voted separately on each of the applicable standards or in some manner indicated which of the standards the applicant satisfied and which the applicant did not. In this manner, a reviewing court can determine whether there is substantial evidence in the record to support the Board’s decision.
. Chapel Road Associates, L.L.C. v. Town of Wells, 2001 ME 178 , 787 A.2d 137 ; Kurlanski v. Portland Yacht Club, 2001 ME 147 , 782 A.2d 783 ; and Christian Fellowship and Renewal Center v. Town of Limington, 2001 ME 16 , 769 A.2d 834 .
.§ 165-114. Land development approval standards.
When reviewing any plan(s) for approval of a land development project under this chapter, the Planning Board shall consider *602 the following features and impacts before granting approval and shall determine that the proposed plan is adequate and suitable to fulfill the intents and purpose of this chapter:
A. If a subdivision, the criteria established under 30-A M.R.S.A. § 4404, as it shall be amended, and the requirements of Article XVIII of this chapter.
B. Location and arrangement of off-street parking and loading areas and their appurtenant drives and turnaround and maneuvering areas.
C. Location and spacing of access drives to the site from any street, including the possible limitation of such access points to joint access and parallel service streets (whether public or private).
D. Stormwater drainage, including any impacts on designated flood-prone areas, floodways (as established under the National Flood Insurance Program), adjacent properties or the city's sanitary and stormwater sewers and drains.
E. Impact of the location of areas of outdoor display and/or storage and location, intensity, type, size and direction of outdoor lighting.
F. Screening and visual impact on adjacent sites.
G. Landscaping of unpaved areas or other treatment of the site. Landscaping shall include, as a minimum, the following:
(1) Such screening and planting specifically required by this chapter.
(2) The installation of elements to physically separate paved (and graveled) areas from open space, yards and required setback areas along property lines.
(3) The treatment of open space, drain-ageways, slopes, yards and required setback areas along property lines to reduce dust and erosion and to enhance their visual appearance by such means as seeding or placing sods. (Such treatments will include drainage ditches in the public right-of-way where the grading of front yards extends into the right-of-way.)
(4) The additional planting of shrubs and trees beyond that specifically required elsewhere in this chapter to shade and break up extensive building facades, front, side or rear yards of more than 100 feet in length or open space areas of more than 200 square feet in area not used for active recreation or parking lots containing 200 or more vehicles.
(5) The Planning Board shall consider the practicality of preservation of existing tree growth as identified by the site development plan, particularly in the required buffer yard areas and the preservation of specimen trees throughout. Justification for removal of said trees should be limited to provision of access, excessive grade changes and survivability of the trees. In no case are specimen trees in the buffer yards and street right-of-way to be removed without written authorization of the City Engineer.
H. Location of a building insofar as it directly affects any of the features listed above.
I. Effect on the scenic or natural beauty of the area or on historic sites or rare and irreplaceable natural areas.
J. Whenever situated, in whole or in part, within 250 feet of any pond, lake, river, stream or tidal waters, whether any project will not adversely affect the shoreline of such body of water.
K. For site developments needing approval under the provisions of 38 M.R.S.A. §§ 481 through 488, as amended, and which meet the provisions of 38 M.R.S.A. § 489-A, as amended, as structures which may be approved by local municipalities, the following provisions shall apply:
(1) Such project shall meet the standards of 38 M.R.S.A. § 484.
(2) Such project shall meet the requirements of Department of Environmental Protection regulations, Chapters 371, 372, 373, 374, 375, 376, 377 and 500 as they may be amended from time to time, which are adopted for this subsection by reference. [Amended 3-10-1999 by Ord. No. 99-96]